CJFE submission on Bill C-36 (Anti-terrorism Act) Delivered to the House of Commons Standing Committee on Justice and Human Rights

Tuesday, November 13, 2001

Introduction
Shortly after the Sept. 11 terrorist attacks on the United States, Canadian Journalists for Free Expression wrote the Minister of Justice, Hon. Anne McLellan, to express its concern over the Government of Canada's plans to introduce sweeping omnibus anti-terrorism legislation. Bill C-36, the Anti-terrorism Act, has now been introduced and is the subject of intense debate in Parliament and among Canadians.
We applaud the regard for the principles of due process and judicial review that are visible in numerous sections of the bill. We are pleased that the Government has heeded some of the concerns of CJFE and others, and has not sought to curb encryption or unduly restrict the freedom of communication over the Internet.
However, CJFE believes several sections of the bill contain serious assaults on the principles of free expression. In our view, it remains deeply flawed. It must not be passed without significant changes to protect the right of Canadians to freedom of expression and the ability of journalists to go about their work. We also question the need to rush passage of a bill that makes significant inroads on long-standing principles of Canadian justice, in the absence of a demonstrably imminent threat to Canada or Canadians. We urge the government to allow more time for Canadians to consider this legislation and make representations on it.
Freedom of expression
Freedom of expression is protected in Canada's Charter of Rights and Freedoms and in Article 19 of the International Covenant on Civil and Political Rights, to which Canada is a party. Both instruments allow, in the tradition of liberal democracy, restrictions on an individual's liberty to protect the rights and freedoms of others as long as these are democratically approved and the principles of due process and the right of review are maintained.
CJFE is a private, non-profit organization dedicated to the defence of persecuted journalists and the promotion of free expression in Canada and around the world. We have watched, over our 20 years of existence, as governments employ extraordinary powers to restrict free expression in the name of fighting security threats. Almost invariably, these turn out to be the wrong tool for the job. They cause at least as many problems as they solve. And they lead to abuses that bring enormous discredit to the responsible authorities.
Since Sept. 11, Canadian authorities have spoken of a need to shift the balance in public life away from "civil liberties" in favour of "security." CJFE believes that true security depends on rigorous respect for civil liberties. The restrictions on freedom of expression contemplated in Bill C-36, far from enhancing security, are likely to breed insecurity, as unpopular ideas whose expression runs the risk of attracting attention from law-enforcement agencies are driven into the shadows. The bill raises the prospect that dissent will be forced underground and confidence in Canada's security forces will be eroded. By resorting to executive fiat, it weakens the accountability of elected governments -- a fundamental requirement of democracy.
Moreover, there is no reason to threaten freedom of expression as it is threatened in this bill. Law-enforcement and security agencies already have extensive powers to investigate crime, conduct surveillance and restrict access to information. These are summarized in the Canadian Bar Association's excellent submission to the Government on Bill C-36. Many Canadians feel some of these powers are excessive as they now stand, and have sought freer access to government-held information or further restrictions on the arbitrary exercise of power by law-enforcement personnel.
Information now in the public domain regarding the September attacks suggests that extraordinary powers would not have prevented them, and are not needed in the continuing investigation. On the contrary, what is needed is better co-ordination, together with the will to commit resources backed by the powers governments now possess. The challenge of Sept. 11 is surely best met through precise detective work on well-known and long-identified threats, not vast new surveillance networks that invite abuse.
For these reasons, CJFE wishes to register the strongest possible warning against encouraging security personnel to cast suspicion on those exercising the right to free expression, including peaceful political dissent and religious practice, or to further invade the privacy of Canadians.
Definition of terrorism (Part 1)
CJFE agrees with the concerns raised by many Canadians about the vagueness of the definitions in Bill C-36. Specifically, we are concerned that the right to peaceful dissent and the right to freedom of association, which is a form of free expression, are likely to be curtailed by provisions aimed at defining terrorism and the facilitation of terrorism.
The creation of a list of terrorist entities (Section 83.05, Criminal Code) poses a clear danger to freedom of expression. Individuals and lawful non-terrorist entities such as charities run the risk of inclusion through error, malice or unnecessarily rigid interpretation. CJFE applauds the government's decision to provide for judicial review, but believes it has not provided sufficient guarantees for improperly accused entities.
CJFE is gravely concerned at Paragraph (6), which allows the reviewing judge to consider information in secret when determining whether to grant an application for delisting. This is a serious violation of the principle that a person is entitled to know his accuser, part of the bedrock of Canadian justice. It opens the door to the use of dirty tricks and disinformation of all kinds by political opponents against individuals and groups alleged to be terrorist entities.
We are also concerned at the sharp restriction on the right of listed entities to make repeated applications for delisting. Paragraph (8) says this may be done if there has been a material change in the entity's circumstances, but fails to define "material change," presumably giving lower-echelon government officials the arbitrary power to determine whether to accept a repeat application.
Furthermore, it seems only fair to include provision for awarding costs to individuals or organizations held on judicial review to have been improperly listed. The right to peaceful dissent is unacceptably diminished if only those with significant financial resources can defend it.
Section 83.01 (1) defines a terrorist activity, inter alia, as an act or omission committed for a political, religious or ideological purpose, objective or cause, with the intention of intimidating the public with regard to its security, including economic security, or compelling any type of behaviour from an individual, government or organization.
CJFE is concerned that peaceful but forceful expression of opinion in the service of a cause could be held to be carried out with the intent to intimidate or endanger public safety, whether or not this was actually the case. An example might be a protest group suggesting that a particular government policy is endangering Canadians' health or economic security, or a published commentary to the same effect. It is not at all clear what it means to "intimidate the public … with regard to its security, including economic security." Through its very vagueness, a term such as "intimidation" invites abuse. It should be dropped from the bill.
There is, to be sure, an attempt in sub-clause (E) to safeguard "lawful advocacy, protest, dissent or stoppage of work." But this applies only to the relatively narrow category of disruptions of essential services. This, in our view, is far too weak. The exemption should explicitly apply to all forms of peaceful free expression.
Similar problems surround the use of the words "facilitate" and "facilitating." Disturbingly, Section 83.01 (2) stipulates that a terrorist activity may be held to be facilitated whether or not the accused knows that facilitation has taken place, and whether or not any act was planned, or indeed occurred. As the bill stands, it is not inconceivable that writing or speech in defence of persons accused of terrorist offences, or of their legal rights, could be held to constitute facilitating terrorism under Section 83.19. The maximum penalty for this offence is 14 years' imprisonment.
In sum, this section raises the prospect that an individual pursuing peaceful political objectives and exercising his right to free expression could be smeared by government action and face a lengthy, expensive procedure to clear his name. CJFE urges the government to include specific exemptions in this bill for the peaceful expression of opinion. It would go a considerable distance toward reassuring Canadians that the government's only intention is to target bona fide security threats.
Recommendations:
# Delete clause (E) and section (A) from section 83.01(1)(b)(i), removing references to political, religious or ideological purpose and disruption of essential services.
# Delete from clause (B) the words "intimidating the public, or a segment of the public, with regard to its security, including its economic security."
# Delete subsection (8) from section 83.05.
# Add a provision stating that an entity delisted after judicial review is entitled to recover from the state the costs of pursuing the application.
# Add a provision stating that nothing in this Act shall be interpreted to prohibit the peaceful expression of opinion protected by the Charter of Rights and Freedoms.
Preventive detention/Compulsion of testimony/Due process (Part 1)
Criminal Code sections 83.28, 83.29 and 83.3 in the bill allow the preventive detention and interrogation of individuals in anticipation of the commission of offences. They relax the habeas-corpus limits applying to arrest and give unprecedented powers to law-enforcement personnel to round up individuals who are not suspected of any crime and compel them to testify. They could be jailed for a year if they refuse to testify, or freed on recognizance under a range of conditions limited only by judicial imagination.
These sections constitute an abrogation of traditional safeguards against arbitrary arrest and self-incrimination. They would cast a pall over the exercise of free expression in Canada. A speech or piece of writing calling on Canadians to take a particular course of action could easily lead to detention and the imposition of a recognizance, which might include an undertaking not to publish further writings or make speeches. Since the bill contains no prohibition on repeated applications of these sections, it effectively gives the state the power -- albeit tempered by judicial review -- to impose lifelong conditions on the liberty of an individual who has been charged with no crime.
The investigative-hearing sections (83.28 and 83.29) are of concern to journalists, whose exercise of professional duties could bring them in contact, knowingly or not, with terrorist entities or persons suspected of terrorism. They could easily be compelled to testify about such contacts under this section. The Canadian courts have recognized that there is a public interest in maintaining the confidentiality of journalistic sources. As the Canadian Bar Association said in its submission to the Committee: "The compulsory disclosure contemplated by Bill C-36 … would likely result in people being less willing to come forward and give information to the media. It would inhibit free expression in the work and discourage reporters from using a confidential source with information that is in the public interest to disclose."
The opportunities for abuse in these sections outweigh any value they may possess. They would allow the state to impose curbs on freedom of expression or other liberties against individuals on the ground that such curbs are necessary to prevent terrorist acts from being committed. In the wrong hands, they could be used to silence critics. We note that in other countries, provisions for preventive detention or internment have been among the most controversial and frequently abused components of national-security legislation.
CJFE is further concerned about the provisions in Section 16 of the bill for restrictions on publication of the identity of witnesses in terrorism trials. We consider this a potential first step down a road that leads to secret trials by faceless judges. Justice must be transparent to be effective. As an organization dedicated to free expression, we are bound to oppose this additional restriction on the media's freedom to report judicial proceedings.
Recommendations:
# Delete Sections 83.28, 83.29 and 83.3
# Allow media organizations to be heard as to whether the provisions of Section 16 should apply in court proceedings.
Official Secrets/Security of Information (Part 2)
CJFE is concerned about the potential for abuse contained in proposed amendments to the Official Secrets Act, now to be known as the Security of Information Act. They would make it an offence punishable by life imprisonment to communicate certain types of information to terrorists.
We applaud the removal of the word "publishes" from the list of prohibited acts in Section 3 of the old law, as well as the extensive attempt to define more clearly "a purpose prejudicial to the safety or interests of the state." We remain concerned that the legislation could be used against persons exercising their right to freedom of expression, including journalists pursuing their profession in good faith.
The proposed Section 16 (2) would make it an offence to communicate "to a foreign entity or to a terrorist group information that the Government of Canada or of a province is taking measures to safeguard," under two conditions: 1) if the communicator "believes, or is reckless as to whether," the Government is taking such measures, and 2) if harm to Canadian interests results. We are concerned at the vagueness of the wording "taking measures to safeguard." This appears to go far beyond official classification of documents and could easily be held to include any information not specifically released to the public. The Government does not, of course, publish a list of what it is "taking measures to safeguard."
In the case of information received from a source other than the government, the inclusion of a test of recklessness could be held to establish a requirement to determine before publication whether material was classified or otherwise intended to remain secret. This would be unreasonable, as it could lead to the prosecution of a journalist or indeed any Canadian who receives and disseminates information whose publication is clearly in the public interest.
Moreover, in our view, a court applying a liberal interpretation of "communicate" could easily hold that publication in print, broadcast or online media constitutes communication to a foreign entity or terrorist group, since material thus published is available indiscriminately. It is therefore conceivable that a journalist could be jailed for life after publishing information that is not already in the public domain, regardless of the degree of public interest involved. We are sure that Canadians accustomed to free and independent media will be dismayed at this prospect.
The same concern exists with respect to the proposed Section 17, which prohibits communication of "special operational information" as defined in the proposed Section 8. This is a sweeping category including many topics that are the subject of journalistic investigation from time to time, precisely because they are legitimate topics of public debate. Examples include military strategy (for potential as well as actual conflicts), deficiencies in techniques and methods of information collection and storage, and (with no time limit) the identity of not only individuals but also agencies and other entities with which the government covertly co-operates.
Subsection (1) (g) extends the prohibition to information received from foreign entities and terrorist groups. This raises the possibility of a journalist being prosecuted for publishing information received in good faith from entities other than the government of Canada, unaware that the Government was taking measures to safeguard it. Furthermore, the conspiracy provisions of the proposed section 23 could be applied against all involved in the publication of material covered by sections 16 and 17.
Finally, we are concerned at the lack of a time limit on the designation of "persons permanently bound to secrecy" under Sections 8 through 15. These are government officials and others barred for life from disclosing certain types of information. This provision is not only unreasonable, it is probably unworkable - and it would likely undermine respect for the very security services it seeks to protect. As Professor Wesley Wark of the University of Toronto has said: "In the war on terrorism, publics will need to be told more, rather than less, about the actions and capabilities of Canadian security and intelligence institutions."
CJFE submits that the bill should be amended to specifically rule out the possibility of prosecution for bona fide journalistic activities or public speech, neither of which constitute the type of private, closely targeted communication the Government is evidently attempting to prohibit.
Recommendations:
# Delete "or is reckless as to whether" from the proposed Security of Information Act Sections 16(1)(a) and (b), 16(2)(a), and 17(1)
# Add language exempting public speech and bona fide journalistic activities from the provisions of the act.
Access to information (Part 5)
CJFE wishes to add its voice to those of the numerous Canadians who object to Section 87, which would allow the Attorney General of Canada to issue a certificate to prohibit indefinitely the release of information to Canadians under the Access to Information Act.
The government already has sweeping powers to prohibit the release of sensitive information to protect Canada's international relations. Quite properly, they are subject to review by an independent commissioner appointed specifically for the purpose. To our knowledge, during the life of the Access to Information Act there have been no instances in which the security of Canadians has been compromised through release of information under the Act.
Therefore, we are at a loss to understand why the government is prepared to abandon the principle of review. It gives credibility to the entire regime of access to information, which is maintained at no inconsiderable cost and which has brought substantial benefits to Canadian society.
We note that the United States, the country directly attacked on Sept. 11, is not seeking additional powers to restrict the disclosure of information as part of its anti-terrorist response. We hope that Section 87 does not represent an attempt to obtain, under the rubric of counter-terrorism, a sweeping exemption that would be hard to justify on its own. To reassure Canadians that this is not the case, we strongly recommend the removal of this section from the bill.
Recommendation:
# Delete Section 87.
Communications Security Establishment (Part 5)
CJFE is deeply concerned at the proposal to expand the powers of the Communications Security Establishment. It appears that for the first time, the agency will be able to intercept the communications of Canadians. The act specifies that the interception must be directed at a foreign entity and that the Minister of National Defence must have reasonable grounds to authorize it.
However, we believe this power is far too broad and will have the effect of impairing Canadians' right to privacy, which is one of the pillars of free expression. It should be tempered by judicial review, as with domestic wiretapping legislation. This power is also a direct attack on the principle of confidentiality of journalists' sources. A Canadian journalist communicating with a foreign source will no longer be able to assure the source that his identity is known only to the journalist.
Recommendation:
# Amend the proposed Section 273.65, National Defence Act, replacing "The Minister" with "a judge."
# Add a provision prohibiting the interception of conversations of Canadian journalists.
Review provisions/Sunset clause
If Bill C-36 becomes law, the Government of Canada will not simply have taken a precaution against the commission of terrorist acts. It will have taken the proactive step of giving extraordinary tools to security personnel which will be employed, in all likelihood forthwith. While the bill is aimed at terrorism, it contains enough obvious loopholes to raise the possibility that these enhanced powers will be used for purposes unrelated to counter-terrorism. And if history is any guide, there is a high probability that extraordinary powers will be abused -- whether willfully, by human error or through conflicting interpretations.
For these reasons it is essential to keep the citizen's right of appeal and review paramount. This is one of our most hallowed legal principles, but Bill C-36 offends it in several respects, some of which are discussed above. It gives the Attorney-General of Canada absolute power to exempt documents from the Access to Information Act. It gives the Minister of National Defence absolute power to order surveillance by the Communications Security Establishment. It places a series of hurdles in the path of an innocent individual accused of having links to terrorism who wishes to clear his name -- hurdles which, in some cases, are so high as to constitute a denial of the right to review.
In all these cases, the principle of judicial review should be maintained. Additionally, we agree with the many Canadians who have called for a sunset clause for Bill C-36.
The bill should have a life of no more than five years. It creates extraordinary powers never before sought by the state from the people of Canada. The price of quick passage must surely be a requirement to reintroduce before Parliament, after a period of time, whatever sections are believed to have been effective. Parliamentary review is not enough; the onus must be on the government to demonstrate that these powers are still necessary.
Recommendation:
# Add a clause providing that the bill will expire a maximum of five years from the date of royal assent.
Conclusion
CJFE applauds all efforts to bring the perpetrators of the atrocities of Sept. 11 to justice. We appreciate the Government of Canada's attempts, in its drafting of Bill C-36, to maintain respect for the principles of free expression, due process and judicial review. However, we believe the bill as introduced falls well short of what is required to protect essential freedoms.
We urge members of the Standing Committee on Justice and Human Rights to take careful note of our concerns and those of other Canadians, as well as the report of the Special Senate Committee. In the end, safeguarding our freedoms must take precedence over rushing the bill into law.
Summary of Recommendations
Definition of terrorism
# Delete clause (E) and section (A) from section 83.01(1)(b)(i), removing references to political, religious or ideological purpose and disruption of essential services.
# Delete from clause (B) the words "intimidating the public, or a segment f the public, with regard to its security, including its economic security."
# Delete subsection (8) from section 83.05.
# Add a provision stating that an entity delisted after judicial review is entitled to recover from the state the costs of pursuing the application.
# Add a provision stating that nothing in this Act shall be interpreted to prohibit the peaceful expression of opinion protected by the Charter of Rights and Freedoms.
Preventive detention/Compulsion of testimony/Due process
# Delete Sections 83.28, 83.29 and 83.3
# Allow media organizations to be heard as to whether the provisions of Section 16 should apply in court proceedings.
Official secrets/Security of information
# Delete "or is reckless as to whether" from the proposed Security of Information Act Sections 16(1)(a) and (b), 16(2)(a), and 17(1)
# Add language exempting public speech and bona fide journalistic activities from the provisions of the act.
Access to Information
# Delete Section 87.
Communications Security Establishment
# Amend the proposed Section 273.65, National Defence Act, replacing "The Minister" with "a judge."
# Add a provision prohibiting the interception of conversations of Canadian journalists.
Right of review/Sunset clause
# Add a provision stating that the bill expires a maximum of five years from the date of royal assent.